Agency workers may find themselves supplied to a sole client of their agency over several years. But are they still considered to be agency workers under the Agency Workers Regulations 2010 when they are supplied long-term to a single client?
The Regulations
The Agency Workers Regulations 2010 (AWR), which give effect to the Temporary Agency Workers Directive 2008/ 104 EC, outline the rights of temporary agency workers who are employed by the temporary work agency under a contract of employment or other workers contract. These include the right to enjoy basic working and employment conditions at least equal to those engaged by the end user's/ hirer's own employees, particularly with regard to pay.
Is an Agency Worker's Assignment Temporary?
The issue in the case of Angard Staffing Limited v Kocur (UKEAT/0050/20) was whether Mr Kocur was temporarily supplied to the Royal Mail as the end user / hirer and thus had the status of an agency worker within the meaning of regulation 3(1) of the AWR. This would have entitled him to basic working and employment conditions enjoyed by permanent Royal Mail staff.
Mr Kocur's contract with Angard Staffing Limited was open-ended and he was only supplied to Royal Mail as the agency's sole client. In fact, Mr Kocur had been regularly and repeatedly supplied to the Royal Mail for four years. The Employment Tribunal held that each assignment had been defined by a period, by reference to a particular period and shift or shifts. As such, he was found to be an agency worker under the AWR 2010.
What Does This Decision Mean for You?
The case emphasizes the need to focus on the nature of the supply of the agency worker relating to each assignment by the agency to the end user / hirer, as opposed to the nature of the agency worker's contract with the agency. This helps when examining whether an individual is an agency worker.
Workers on zero-hour contracts, or those supplied to cover staff absences or upsurges in work are likely to be notified periodically of shift availability. As such, the nature of these assignments are likely to be of a temporary nature.
The EAT's decision will be of comfort to agency workers who are supplied on a long-term basis to a single client or end user. A previous case, Moran and others v Ideal Cleaning Services Limited UKEAT 0274/13, had introduced uncertainty on an agency workers' rights where assignments were for indefinite periods and open ended rather than temporary by nature.
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